The Case for Recognizing (Once Again) the Internet as a Public Utility on the Federal Level

By: Logan LeCates
Since the end of net neutrality, various entities have been throttling bandwidth.[1] Is it fair or reasonable (or arguably a breach of contract) for the provider of a service to, of their own volition and lacking necessity, to throttle service to one customer who has already paid, in order to provide superior service to another? Detractors would contend that the buffering of a few YouTube or Netflix videos is a trivial convenience, and that consumers should consider using another ISP or internet service. However, ISPs often function as regional monopolies, and consumers in rural regions often have no alternative methods for internet access.[2] Furthermore, failing to hold ISPs accountable for this behavior can have far-reaching consequences. In fact, this behavior has already endangered emergency responders, who are often reliant on broadband for communications.[3]
Two points of interest alone would be sufficient to justify restoring the federal regulation of the internet: The Constitution, and the First Amendment. Article I, § 8, clause 3 provides that Congress has the power to regulate interstate commerce.[4] For most Americans, the days of walking down to the nickel and dime are gone; we use our phones or laptops to order products from Amazon, pre-order groceries (or even have them delivered), and transfer money for privately rendered services through applications such as Venmo. For example, in July 2018, the U.S. Census Bureau estimates that Americans spent $ 507.5 billion via e-commerce.[5] The necessity and volume of use are alone sufficient to allow Congress to justify passing legislation regulating broadband.
The other obvious concern is censorship – social media companies have the ability to permit and deny use of their platforms for the expression of thoughts and ideas, and this can be weaponized for political or ideological purposes. Considering how reliant we have become on the internet for communication, this is a legitimate concern; print is dead, and our public squares are now digital. If we are not free to express ourselves online, then how can diversity of thought and opinion prevail? Free market advocates would argue that these are companies and should not be subject to regulation, but they are behemoths, and like ISPs, function together as an oligopoly. There is no mechanism to incentivize or disincentivize their behavior, and they have no true competition. Under government regulation, these platforms could be precluded from this activity, and legislators could be held accountable for enforcement by the democratic process.
  1. Olga Kharif, YouTube, Netflix Videos Found to Be Slowed by Wireless Carriers, Bloomberg Technology (Sept. 4, 2018, 5:00 AM), https://www.bloomberg.com/news/articles/2018-09-04/youtube-and-netflix-throttled-by-carriers-research-finds.
  2. Kayleigh Rogers, More Than 100 Million Americans Can Only Get Internet Service From Companies That Have Violated Net Neutrality, Motherboard (Dec. 11, 2017, 2:30 PM), https://motherboard.vice.com/en_us/article/bjdjd4/100-million-americans-only-have-one-isp-option-internet-broadband-net-neutrality.
  3. Jon Bodkin, Verizon Throttling Could Trigger FTC Investigation of Deceptive Practices, Ars Tecnica,(Aug. 27, 2018, 12:10 PM), https://arstechnica.com/tech-policy/2018/08/verizon-throttling-could-trigger-ftc-investigation-of-deceptive-practices/.
  4. U.S. Const. art. I, § 8, cl.3.
  5. Advanced Monthly Sales for Retail and Services, August 2018 (Release Number: CB18-140), https://census.gov/retail/marts/www/marts_current.pdf (last visited Sept 4, 2018).

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